Advisory Opinion 45

Guidance on Gift Giving Rules (Provision No. 8)

(originally adopted in 2009, amended in 2013)

Statement of Facts

The NCRA Board of Directors asked the Committee on Professional Ethics to amend Provision 8 to prohibit all incentive gifts or rewards offered in exchange for future work. This request came from the Board after NCSA adopted a single resolution based on identical resolutions submitted by seven states making this same request.

In March 2011, COPE presented its recommended changes to the Board. The Board adopted the following new language of Provision 8:

Refrain from giving, directly or indirectly, any gift or anything of value to attorneys or their staff, other clients or their staff, or any other persons or entities associated with any litigation, which exceeds $150 in the aggregate per recipient each year. Nothing offered in exchange for future work is permissible, regardless of its value. Pro bono services as defined by the NCRA Guidelines for Professional Practice or by applicable state and local laws, rules and regulations are permissible in any amount.

Discussion

Purpose of the Provision: The Association adopted the restrictions contained in Provision No. 8 because the practice of giving items of value to attorneys, clients, or their staff could create in the eyes of the public the appearance that the reporter or firm holds some partiality or favoritism toward the recipient. As such, these practices undermine and dilute the integrity of the reporting profession and the status of the reporter as neutral and impartial officer of the court.

What is a Gift? As in the rules governing the United States Congress, the term “gift” is defined broadly to include any item, gratuity, favor, entertainment, hospitality or other item having monetary value. This includes “points” or “credits” that may be exchanged by the recipient for something of value.

From its adoption in 1993, Provision No. 8 has recognized that gifts of nominal value, such as pens, pencils, coffee mugs and other advertising paraphernalia or modest forms of meals and entertainment do not compromise the reporter or firm’s appearance of impartiality and are permissible. However, NCRA has now chosen to distinguish gifts that are for marketing purposes, or to thank clients for past work, versus gifts that are given in exchange for future work. For the purposes of this opinion, these two types of gifts will be referred to as “thank you” gifts and “incentive“ gifts.

What is the Value of a Gift? The amount of a gift is measured by its retail or fair market value. That is, what the recipient would reasonably expect to pay if they were to purchase the gift for themselves from generally accessible sources. The actual cost incurred by the firm or individual providing the gift is irrelevant.

What is the $150 Aggregate Limit? Marketing or thank you gifts that do not exceed $150 in aggregate value, per recipient, per year are considered nominal and are permissible. Items with a value of less than $10 do not count toward the annual limit.

These aggregate limits apply to the individual or entity that is the recipient and beneficiary of the thank you gift.f

Pro Bono Services Allowed. Provision No. 8 also recognizes an exception allowing for members to provide pro bono services as defined by the “NCRA Guidelines for Professional Practice” or by applicable state and local laws, rules and regulations.

Adhering to the Spirit of the Rule: Members must adhere to the spirit as well as the letter of the rule regarding gift giving and avoiding the appearance of impropriety. For example, to repeatedly give gifts valued at under $10 to the same recipient in order to exceed the $150 aggregate limit would violate the spirit of the provision and hence be impermissible. Elaborate or complicated schemes to obfuscate the value of gifts offered or to direct gifts to a single recipient through different staff members from the same firm in order to exceed the limits of Provision No. 8 would similarly violate the spirit of the rule and be impermissible.

Complaint Process: Allegations of violations of Provision No. 8 of the Code will be considered and adjudicated using the standard procedures and due process protections contained in the COPE Complaint Procedures.

The Committee on Professional Ethics may find a violation of the Code based upon the above factors.

Pursuant to the Complaint Procedures and NCRA’s Constitution and Bylaws, following the filing and consideration of a complaint, the Committee shall prepare a written decision containing its findings of fact and conclusions. It may issue a cautionary letter, warning or statement of advice to the Member, require remedial ethics training, order that the Member be reprimanded, or determine that the Member be suspended or expelled from the Association, depending upon the severity of the violation, prior history and other relevant circumstances. If a Member resigns from NCRA while a complaint is pending, COPE will still complete its determination of the matter.

NCRA is extremely sensitive to its obligation to ensure that nothing in the Code infringes upon a member's ability to make independent business decisions or otherwise raises antitrust concerns. By way of clarification, the Committee notes that Provision No. 8 is not designed to prevent or deter members competing with each other, such as offering volume or price discounting of their reporting services. The purpose of the gift giving restrictions is to discourage practices that in the past have undermined the critical role court reporters play as impartial and neutral officers of the court, not to inhibit legitimate forms of price and other business competition. These restrictions are similar in scope and nature to those placed on other professions both within and outside the legal field. These restrictions have been in place since 1993 and have been reviewed by the U. S. Federal Trade Commission. NCRA satisfied the FTC that the reasonable limits the provision places upon the profession are appropriate.

THIS PUBLIC ADVISORY OPINION REFLECTS THE STATUS OF THE LAW IN MOST JURISDICTIONS. MEMBERS ARE REQUIRED TO CONFORM TO THE ACCEPTED PRACTICES SET FORTH IN THIS PUBLIC ADVISORY OPINION TO THE EXTENT THAT SUCH PRACTICES ARE CONSISTENT WITH THEIR OWN APPLICABLE STATE AND LOCAL LAWS, RULES AND REGULATIONS.